I respectfully dissent.
I first want to compliment the majority for a sophisticated, indeed intricate, opinion explaining why the Legislature did not mean what it said in the statute at issue. One of the interesting and also confounding attributes of the many “canons” of legislative interpretation is that they often are in conflict and can be used to justify divergent interpretations of a given statute or statutory scheme. In this case, the majority fires a full battery of such canons aimed at demolishing the “literal” language the Legislature used to define who was entitled to the benefit of Penal Code section 1381.5. Nonetheless, I am persuaded the prior courts got it right, albeit in dictum.1 In my view, section 1381.5 does apply to California probationers who are in custody as federal prisoners.
The issue is rather simple. Does the clause “any criminal proceeding wherein the defendant remains to be sentenced”2 include probationers who have yet to receive a term of confinement for an alleged probation violation? That is, has someone who received probation been “sentenced” or is she only sentenced when the court finds a violation of probation and imposes a term of imprisonment? Or assuming the initial grant of probation does constitute a “sentencing” does a later probation revocation proceeding represent a second “criminal proceeding wherein the defendant remains to be sentenced?” I grant the language is susceptible to either of these interpretations, but either one yields the same result—a probation revocation proceeding falls within the broad term “any criminal proceeding wherein the defendant remains to be sentenced.”
*325To find support for the conclusion a probationer is not “sentenced” until given a tenn of imprisonment pursuant to revocation of her probationary status, one need look no farther than Penal Code section 1203.2a, the code section the majority finds clearly applicable to probationers.3 That statute speaks of defendants being “released on probation” not as “sentenced to probation.” It further distinguishes the status of being on probation from receiving a sentence in defining the class of defendants and situations to which its provisions apply as those where “no sentence has previously been imposed for the offense for which he or she was granted probation . . . .”
From this language in Penal Code section 1203.2a, it is more than apparent the Legislature considers a probationer “remains to be sentenced” until the court revokes her probation and imposes a term of confinement. That is, a release on probation is not a sentence. Accordingly, until probation is revoked and a term of confinement imposed, a defendant in federal *326custody is subject to a “pending . . . criminal proceeding where [she] remains to be sentenced.” As a consequence, she is entitled to invoke the protections of section 1381.5.
But as pointed out above, even if a defendant who receives probation is considered to have been “sentenced,” that does not mean Penal Code section 1381.5 is inapplicable when she faces probation revocation. This second proceeding also qualifies as a “criminal proceeding wherein the defendant remains to be sentenced.” It can be construed as a second stage of the initial sentencing or as a separate proceeding. But once again, either way it constitutes a “criminal proceeding wherein the defendant remains to be sentenced.” No one can seriously dispute a probation revocation hearing is a “criminal proceeding.” And it seems difficult to dispute it is a proceeding where a “sentence is imposed” and until which it occurs the defendant “remains to be sentenced.”
At the policy level as opposed to interpretation of the statutory language the Legislature used, the majority seeks to distinguish a defendant’s interest in a timely first sentencing from her interest in a timely probation revocation proceeding. (Maj. opn., ante, át pp. 319-320.) The majority summarizes these policy considerations as “avoiding prolonged imprisonment, limiting anxiety attendant to an unresolved criminal charge, reducing the effect of lapse of time on trial witnesses, and providing the opportunity for imposition of concurrent sentence.” (Maj. opn., ante, at p. 319.) These policies, the majority emphasizes, “apply to defendants who' have not been afforded a sentencing hearing” as well as those who have not yet been tried. {Ibid.) I submit they also apply to probationers who are alleged to have violated probation. Without the protection of Penal Code section 1385.1, the possibility of probation revocation and the potential prison term resulting therefrom may remain unresolved until the federal term is completed—perhaps many years hence. As a result, such probationers may experience anxiety, may lose witnesses who could disprove the alleged grounds for revocation, lose the opportunity for a concurrent sentence, and end up with prolonged imprisonment.
The majority makes much of Penal Code section 1203.2a and the opportunity it affords for probationers to seek a concurrent sentence. (Maj. opn., ante at pp. 321-322.) Unfortunately, this section requires probationers who wish to take advantage of its benefits to throw themselves on the mercy of the court. In order to plead for this measure of mercy, probationers must give up any opportunity to challenge the allegations they violated the terms of probation. They must surrender their rights to counsel or even to personally attend the proceeding—if it can be called that—where the trial court decides *327whether to grant the request for a concurrent sentence. This may be an adequate remedy for those who know they have no chance of defeating the revocation allegations or whose maximum term upon revocation will expire before—or soon after—the term they are serving presently. But for many probationers it is no substitute for the opportunity afforded by Penal Code section 1385.1 (and its companion § 1381).
For these reasons, I would interpret Penal Code section 1385.1 as embracing alleged probation violators as well as others involved in “criminal proceedings wherein the defendant remains to be sentenced.”
Appellant’s petition for review by the Supreme Court was denied June 11, 2003. Kennard, J., and Werdeg'ar, J., were of the opinion that the petition should be granted.
See, e.g., People v. Johnson (1987) 195 Cal.App.3d 510, 514 [240 Cal.Rptr. 748], disapproved on other grounds in In re Hoddinott (1996) 12 Cal.4th 992, 1005 [50 Cal.Rptr.2d 706, 911 P.2d 1381], Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484 [112 Cal.Rptr. 286], and Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 26-27 [111 Cal.Rptr. 249].
Penal Code section 1381.5 provides: “Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution located in this state, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced the district attorney . . . upon receiving from such defendant a request that he be brought to trial or for sentencing, shall promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial or for sentencing. If an assent from authorized federal authorities for release of the defendant for trial or sentencing is received by the district attorney he shall bring him to trial or sentencing within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial or sentencing at such specified time .... [K] If a defendant is not brought to trial or for sentencing as provided by this section, the court in which the action is pending shall, on motion or suggestion of the district attorney, or representative of the United States, or the defendant or his counsel, dismiss the action.” (Italics added.)
Penal Code section 1203.2a provides: “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel. [U] The probation officer may, upon learning of the defendant’s imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. [^[] Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence. ffl] . . . [U] In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.”